19-953 Puma Bravo v. Wolf 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT = S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION A SUMMARY ORDER @ ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the Un ited States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 5 th day of March, two thousand twenty.

PRESENT: P IERRE N. L EVAL , R ICHARD C. W ESLEY , D EBRA A NN L IVINGSTON , Circuit Judges.

_____________________________________ I VAN L IZANDRO P UMA B RAVO , A NA C ECILIA D URAN G UAMAN , S HERLYN I VONNE P UMA D URAN , by her mother and Guardian Ana Cecilia Duran Guaman, N ICOLE C ECILIA P UMA D URAN , by her mother and Guardian, Ana Cecilia Duran Guaman, M OISES G UERRERO R AMOS , and their 3 USC children, M AURILIA D URAN L UNA , and their 3 USC children, G RISELDA B ALTAZAR T REJO , and their 4 USC children, F RANCISCO E SCAMILLA G ONZALEZ , and their 4 USC children, C ONSTANTINO S ALAS B URGUA , and their 3 USC children, M ARIA R AFAEL A LVAREZ , and their 3 USC children, Plaintiffs-Appellants , v. 19-953

C HAD F. W OLF , Acting Secretary for the U.S. Department of Homeland Security, W ILLIAM B IERMAN , Field Office Direct or, New York, NY U.S Citizenship and Immigration Services, U.S. Department of Homeland Security, M ARY B ETH K ELLER , Chief Immigration Judge Executive Office of Immigration Review, L. F RANCIS C ISSNA ,2 Director U.S. Citizenship and Immigration Services, W ILLIAM P. B ARR , Attorney General of the United States, F RANK J AMES L OPREST , J R ., Chief Immigration Judge, New Yo rk District, Executive Office of Immigration Review, New York NY, T HOMAS C IOPPA , District Director New York District Office, US Citizenship and Immigration Services, US Department of Homeland Security, Defendants-Appellees

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_____________________________________ FOR PLAINTIFFS/APPELLANTS: S AUL B ERNARD S CHWARZ , Law Office of S. Bernard Schwarz, Esq., PLLC, New York, NY.

FOR DEFENDANTS/APPELLEES: K IRTI V AIDYA R EDDY , Assistant United States Attorney (Benjamin H. Torrance, Assistant United States Attorney, on the brief ), for Geoffrey S. Berman, United States Attorney for the Southern District of New York, New York, NY.

Appeal from an order of the United States Dist rict Court for the Sout hern District of New York (Caproni, J .). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the order of the district court is AFFIRMED. Appellants challenge the district court’s order dismissing as m oot their challe nge to a 2017 Department of Homeland Security (“DHS”) me morandum which, they allege, foreclosed DHS attorneys’ ability to exercise prosecutorial disc retion to recommend administrative closure in their removal proceedings. The district court concl uded that the challenge was moot because an intervening decision of the Attorney General, Matter of Castro-Tum , 27 I. & N. Dec. 271 (A.G. 2018), stripped immigration judges (“IJs”) of the authority to administratively close removal

1 The Clerk of Court of is re spectfully directed to amend th e caption as set forth above.3 proceedings, even when DHS recommends closure. We assume the parties’ familiarity with the underlying facts, the procedur al history of the case, and the issues on appeal.

We review the district cour t’s dismissal for lack of subject matter jurisdiction de novo

. Fed. R. Civ. P. 12(b)(1); Celestine v. Mount Vern on Neighborhood Health Ctr. , 403 F.3d 76, 79– 80 (2d Cir. 2005). A case remains li ve “as long as the parties have a concrete interest, however small, in the outcome of the li tigation” and a court may be able “to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int’l Union, Local 1000 , 567 U.S. 298, 307–308 (2012) (internal quotation marks and altera tion omitted). A case becomes moot, and federal courts lack subject ma tter jurisdiction, when the part ies no longer have a “legally cognizable interest” in the outcome of the litig ation, rendering the court incapable of granting a judgment that will affect th e parties’ legal rights. Los Angeles County v. Davis, 440 U.S. 625, 631 (1979). We conclude that Appellants’ ch allenge to the 2017 DHS memorandum is moot. The primary injury for which Appellants seek redress is the denial of administrative closure. While the intermediate relief they seek in this case is judici al rescission of the DHS memorandum, that outcome is desirable only in the event that IJs may administratively close removal proceeding. And here, even if the district cour t agreed with Appellants and enjoined the DHS memo, and DHS prosecutors thereafter decide d to recommend closure, plaintiffs would still be stymied by Castro-Tum . In other words, Appellants would have to bring—and win—another legal challenge after this one to obtain “effectual” relief. See Knox , 567 U.S. at 307. Appellants’ contention that Castro-Tum and the DHS memorandum mu tually insulate each

other from review is without merit. Under Castro-Tum , IJs lack authority to administratively

close cases. See 27 I. & N. Dec. at 292. That has not hing to do with wh ether DHS recommends

administrative closure. As the district court correctly concluded, moreove r, Appellants have a4 proper avenue to challenge Castro-Tum : They may request administrative closure directly from an IJ, who, stripped of his power to assess whethe r closure is warranted as a matter of discretion, will be bound to deny. See Castro-Tum , 27 I. & N. Dec. at 272–73. They can then appeal to the Board of Immigration Appeals to argue that Castro-Tum was wrongly decided and petition this

Court for review. See Romero v. Barr , 937 F.3d 282 (4th Cir. 2019). Indeed, another litigant before this Court is pursui ng that course of action. See Benitez Marquez v. Barr , No. 18-3460 (2d Cir.). We recognize that, if the petitioner in Benitez Marquez is successful, A ppellants’ challenge to the 2017 DHS memorandum may no longer be moot . Because the distri ct court’s dismissal was without prejudice, Appella nts may refile if this C ourt ultimately overturns Castro-Tum . We express no opinion on the viability or merits of such a future case. We likewise express no views regarding either the merits of a ny defense available to the defendant s, or as to whether all of the particular plaintiffs in this action would ha ve standing to challenge the 2017 DHS memorandum in such a future case. Accordingly, we AFFIRM the order of the district court.

FOR THE COURT: Catherine O’Hagan Wolf e, Clerk of Court